Berlin at risk of overstepping with letter on bond vote
BERLIN — A letter the Select Board approved Monday night and that was scheduled to go out in Tuesday’s mail may have to be rewritten amid questions about the use of taxpayer money to promote the water supply project that is the subject of a bond vote next week.
The letter was suggested by the engineer who has been working on the $5.5 million project and drafted by the chairman of the town’s water supply committee. The brief missive opened and closed by urging voters to cast ballots in favor of an initiative that it repeatedly described as “important” and “extremely important.”
After obtaining and reviewing a copy of the letter, The Times Argus questioned whether the planned mass mailing was appropriate given its content and the fact that it would be printed on town letterhead, signed by the Select Board and representatives of the Fire Department, and mailed to all residents at taxpayers’ expense.
Town Administrator Jeff Schulz said Tuesday morning that the same thought did cross his mind Monday night, though he didn’t raise the issue during a brief discussion of the letter.
Schulz said Tuesday that he planned a significant rewrite before mailing the letter, which Tom Willard told the board he drafted at the suggestion of representatives of Otter Creek Engineering. Willard is the veteran chairman of the town’s water supply committee, and Otter Creek is the engineering firm that has been working on plans for a municipally owned water system serving the Berlin Four Corners area since 2007.
Schulz was waiting to consult the town’s attorney, Rob Halpert, before editing the letter, but a state elections official said Tuesday that would be a prudent move.
Kathy Scheele, director of elections and campaign finance with the secretary of state’s office, said she would have provided that admittedly “conservative advice” if anyone had asked.
Although it is something of a legal gray area, Scheele said town-sponsored pre-election literature should stick to the facts. Providing voters with information that may help them make a decision is perfectly acceptable, but openly advocating for a ballot initiative probably isn’t, she said.
“You can urge voters to vote, but you can’t urge them to vote yes,” Scheele said, conceding there is little case law on the subject and most of it has to do with school boards.
The closer you get to an election the clearer the law gets.
The handbook compiled by the Vermont League of Cities and Towns as a resource for select boards points to a provision of the state’s election law that states: “Neither the warning, the notice, the official voter information cards, nor the ballot itself shall include any opinion or comment by any town body, officer, or other person on any matter to be voted upon.”
The league handbook further notes that the Vermont Supreme Court ruled in 1994 that “there was no improper influence” in a case involving an “informational letter to voters” that was sent by the board of Middlebury Union High School but “did not express any opinion or comment.”
Generally speaking, Scheele said, that is a good rule of thumb.
“No opinion, no comment, no ‘urging,’” she said, suggesting that is the safest way to avoid a potential legal challenge.
Schulz said he would likely follow that advice after speaking with Halpert and that an edited version of the letter should be ready to be mailed today.
That letter represents the second town-sponsored mass mailing about the water supply project in the run-up to the Feb. 13 bond vote. Town residents recently received a “newsletter” summarizing the project. That newsletter has since been posted on the town’s website, www.berlinvt.org.
Board members, uneasy over what they described as a surprising lack of buzz surrounding the infrastructure project, jumped at the opportunity to do a little additional outreach Monday night. If nothing else, they agreed, the letter would serve as a reminder that polls will be open at the town offices on Shed Road Feb. 13 from 10 a.m. to 7 p.m.
Town officials and representatives of Otter Creek Engineering will present an overview of the project and field questions during a public hearing today at 6:30 p.m. at Berlin Elementary School.
In a related matter, Willard suggested the town owed Montpelier officials a written response to their mid-January letter suggesting that negotiations resume involving the potential for the city to be the water source for the Berlin system. Those talks broke off when town officials concluded that relying on Montpelier for water would be too costly.
In any event, Willard stressed that the bond vote doesn’t have anything to do with the source of the water, but rather would create the infrastructure needed to bring municipal water to an area that is prime for development but has had chronic issues with groundwater contamination.
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